Will UNGASS 2016 be the beginning of the end for the ‘war on drugs’?

Held this April, will the United Nations
General Assembly Special Session be the turning point for the international
drug control system?

United Nations General Assembly. Flickr / UN Photo / Paolo Filgueiras. Some rights reserved.In April 2016, the UN will dedicate, for the
third time in its history, a United Nations General Assembly Special Session
(UNGASS) to discuss global drug policy. The UNGASS has the potential to be a
ground-breaking moment that could change the course of the international drug
control system. However, political divisions and entrenched institutional
dynamics have
dampened hopes that it will go down in history as the beginning of the end
of the war on drugs.

At the joint request of Mexico, Colombia and
Guatemala, the General Assembly decided to bring forward the convention of a
special session to assess “the achievements and challenges in countering the
world drug problem”, originally foreseen for
2019 or 2020. The three countries stated at the time that “revising the
approach on drugs maintained so far by the international community can no
longer be postponed”, and the UN needed to exercise
leadership to "conduct an in-depth review analyzing all available
options, including regulatory or market measures, in order to establish a new
paradigm that would impede the flow of resources to organized crime
groups". An international meeting had to be convened, “capable of taking
the decisions necessary to increase the effectiveness of the strategies and
instruments with which the global community addresses the challenges of drugs
and their consequences”.

Conventional drug control wisdom has put
forward the view that stopping the supply of drugs at the source would solve
the ‘world drug problem’, but Latin American countries bear witness to the
failure of this approach. Stirred into action by the futility of spending
billions of dollars to fight an unwinnable and increasingly violent war on
drugs, it is no surprise that political leaders from Latin America have been at
the forefront of the drug policy debate. From their perspective, the high human
cost in terms of violence, insecurity, mass incarceration and the exacerbation
of the social and economic vulnerability of some of society’s most marginalised
groups – can no longer be justified as necessary collateral damage in pursuit
of eradicating drug markets.

A growing group of Latin American and
Caribbean countries are calling for a real discussion on alternative policies.
In the meantime, Uruguay has moved to create the world's first national legally
regulated cannabis market for recreational use, and similar initiatives have
happened in the US at the state level. This opening up of the long entrenched
and seemingly immovable discussion on prohibitionist drug control principles is
unprecedented and has implications for global policy.

In this context, the UNGASS in April
represents a critical juncture, an opportunity for an honest evaluation of
global drug policy and how to address the most pressing challenges going
forward. Secretary General Ban Ki-moon, in recognition of this rare and
important opportunity, has urged member states
to use the 2016 UNGASS “to conduct a wide-ranging and open debate that
considers all options.”

The
UNGASS preparations

The initial discussions to prepare for the
UNGASS were fraught with disagreements over many procedural aspects. These
included difficult negotiations over the extent to which the UN Commission on
Narcotic Drugs (CND) in Vienna would lead the process; how to strike the right
balance between the UN capitals of Vienna, Geneva and New York in the
preparations; how to ensure meaningful involvement of all relevant UN agencies,
academia and civil society; and – last but not least – how open the debate
should be: should it be restricted to a discussion of how to improve the
implementation of the 2009
Political Declaration and the achievement of its targets for 2019, or
should the UNGASS be an opportunity to challenge the current global drug
control strategy, possibly even questioning its foundation of the three UN drug
conventions?

These difficult negotiations, which on the
surface often appeared to be arguments over procedure, reflected the deep
political divisions within the international drug policy debate. The
much-revered ‘Vienna Consensus’ continues to weaken as the divide between some
governments becomes increasingly irreconcilable. A growing number of countries
now believe that the traditional repressive drug control approach, based on
zero-tolerance, has not worked and has led to disastrous consequences for human
rights, public health, citizen security and sustainable development, and as a
result it has to be modernised.

Some countries calling for an open and
inclusive debate at the UNGASS questioned whether this could be truly achieved
with a process led by the Vienna-based drug control apparatus, given that the
CND, the UN Office on Drugs and Crime (UNODC) and the International Narcotics
Control Board (INCB) have all gained quite a conservative reputation over the
decades. Conducting all the preparations in Vienna led to a further problem for
inclusivity, given that at least 70 member states do not have permanent
representation there and would therefore struggle to fully participate in the
process. The point of convening an UNGASS, is that by definition all UN member
states and the whole UN system should be included on a equal basis, but
limiting the political negotiations on the outcomes exclusively to Vienna,
means that in practice the countries and UN agencies not represented in Vienna
have much less influence on the process.

The much-revered ‘Vienna Consensus’ continues to weaken as the divide between some governments becomes increasingly irreconcilable.

In the end, the hard fought-over resolution on
the procedures decided that the UNGASS “will have an inclusive preparatory
process that includes extensive substantive consultations, allowing organs,
entities and specialized agencies of the United Nations system, relevant
international and regional organizations, civil society and other relevant
stakeholders to fully contribute to the process”, while the CND “as the central
policymaking body within the United Nations system dealing with drug-related
matters, shall lead this process”, inviting
the president of the General Assembly to “support, guide and stay involved
in the process”.

UN special sessions are rare and crucial
moments in UN-level policy making and are designed to ensure a coherent UN
system-wide response to global problems of major concern to the international community.
This has so far been less than optimal in discussions on global drug policy.
After initial slow engagement from other key UN agencies, significant
contributions have now been made from UNDP, UNAIDS and the WHO. The Office of
the High Commissioner for Human Rights has also submitted a
comprehensive report that outlines the most pertinent human rights
violations in relation to drug control policies, while the Human Rights Council
held a high level panel in September 2015 on the
topic of “the impact of the world drug problem on the enjoyment of human
rights”.

A Civil Society Task Force (CSTF) was convened
to ensure the participation of civil society in the process. The CSTF has
representatives from every region of the world, as well as representatives of
the key affected populations such as people who use drugs and subsistence
farmers growing drug-linked crops among others. Initially, formal recognition
of the CSTF was challenging – civil society has always had to fight for
visibility and access at the CND but over the last year there has been
increasing support for this initiative from governments. A major victory for the CSTF was explicit
support from the president of the General Assembly, who presided over an
Informal Interactive Stakeholder Dialogue in New York on the 10 February 2016
organised with the CSTF in support of the preparatory process. The calls
for progressive policies based in principles of harm reduction, of public
health and of human rights from global civil society were deafening at the
event.

Shifting
regional priorities

In terms of regional perspectives, as noted
above, the impetus for pushing for another UNGASS on drugs followed growing
calls for reform from across Latin America at the highest political level. In
fact, the previous UNGASS meetings in 1990 and 1998 had been convened in
response to similar calls from Colombia and Mexico. Around them, a group of
like-minded countries is gradually shaping up around certain positions,
including Ecuador, Uruguay and Costa Rica and supported by Brazil and Bolivia
on some issues. Caribbean countries have long been largely absent from the
debate, not least because discussions have been limited to the CND in Vienna,
where few Caribbean countries are represented – although Jamaica has recently
joined the chorus of dissent and the discussion on several other islands has
intensified.

There are crucial areas where a
strong European voice has been absent.

In terms of European, particularly European
Union (EU), engagement, this has been markedly different from Latin America and
reflects the fact that Europe has managed to avoid the sharpest edges of a
repressive approach to drug control. European countries have not experienced to
the same extent, the high human cost in terms of violence, insecurity, and mass
incarceration experienced in Latin America.
Of course the context is different, but in addition, many European
governments have been pragmatic, have prioritised health care, harm reduction
and human rights protection. While in Europe there are some serious issues
regarding the criminalisation of people who use drugs and disproportionate
sentences for minor drug offences, most European countries have managed to keep
a certain distance from the escalation of the war on drugs in the 1980s and
1990s in the US, Latin America and Asia. At the international level, the
leadership that EU governments have shown in this regard has been critical in
shifting the drug policy narrative towards public health, harm reduction and
human rights principles.

On issues where common positions can be found,
the EU can have a strong impact on the global debate. For example, a united EU
promoted the principle of proper sequencing with respect to ensuring that
subsistence farmers have sufficient access to alternative livelihoods before
being forced to abandon their drug-linked crops. The EU has also demonstrated
unity and commitment on harm reduction and the removal of death penalty for
drug offences, although a global consensus on these issues is not yet in sight.

Unfortunately, there are also crucial areas
where a strong European voice has been absent, and the EU has failed to
understand or acknowledge the sense of urgency and relevance of this UNGASS.
This is clearly the case with regard to the shift in priority that Latin
American countries are seeking, to move away from arresting small-time dealers
and chasing drug shipments towards reducing drug-related violence, organised
crime and corruption instead. In a sense, this is a plea for a harm reduction
policy on the supply side:
the drugs market will not be “eliminated or significantly reduced” by 2019, and
it is time to forget the hollow illusion of a drug-free world.

Instead, government policy could be more
sophisticated and focus on mitigating the most harmful aspects of the drug
trade through reducing the levels of illicit drug market-related violence,
crime, insecurity and corruption. This thinking mirrors similar priority shifts
that have previously taken place in Europe under the harm reduction banner,
with governments taking a pragmatic approach to reduce the harms associated
with drug consumption without necessarily seeking to stop the use of drugs.
These harm reduction policies and programmes have significantly reduced
drug-related harm such as overdose deaths, and HIV and hepatitis C prevalence
among people who inject drugs.

Cannabis
policy and UN treaties

Another example is the lack of EU engagement
in the debate about global cannabis policy developments, the result of the
absence of a common EU position on cannabis and huge national policy
variations. Demonstrating an ostrich-like
denial regarding cannabis policy developments in the Americas but also
at local levels within the EU, the
EU common position for the UNGASS underscores the need to “maintain a
strong and unequivocal commitment to the UN conventions” and that there is
“sufficient scope and flexibility within the provisions of the UN Conventions to
accommodate a wide range of approaches to drug policy”. In addition, the issue
of drug control is a low political priority as the EU currently has it hands
full with the refugee crisis and existential threats around the euro and the
future of European integration.

A game-changing difference between this UNGASS
and the preceding ones is the fact that the position of the US has
fundamentally changed. No longer among the hardliners, the US has acknowledged,
both at the UN but also more recently domestically, that the over-reliance on
incarceration has failed. In August 2013, US Attorney General Eric Holder
admitted that mandatory minimum sentences for drug offences were ‘draconian’
and that too many Americans had been imprisoned for too long for no good law enforcement
justification. He made it clear that the status quo was unsustainable and
damaging. In 2015, President Obama began a process to commute the sentences of
around 6,000 federal drug offenders. In early 2016 the congressional task force
created to examine overcrowding in the federal prison system, recommended
the repeal of federal mandatory minimum sentences for drug offences. Different
legislative initiatives have been tabled, including the Smarter Sentencing Act,
which would cut many mandatory minimums for drug offences in
half.

The domino effect of cannabis regulation at
state level makes the US less sure-footed of condemning other countries for not
stringently adhering to a zero-tolerance approach. Cannabis regulation for
recreational use is outside of the scope of the current UN treaty framework for
drugs, creating a significant problem for the US since it undermines its
credibility to continue defending the conventions as
they stand. The big question is whether this will lead to the US accepting
more flexibility in policy areas that have been explored elsewhere. These
include initiatives such as decriminalisation, drug consumption rooms or the
regulation of coca in Bolivia, all policy options that the US currently
opposes.

UNGASS
outcomes: change of course

The past several years have seen significant
changes in the global drug policy landscape representing a trend towards more
humane and proportional responses based on health, human rights and development
principles. To some extent, the UNGASS will acknowledge those advances and
thereby consolidate the significant change of course that is happening in
various regions of the world. Perhaps the most significant advance will be on
the issue of access to controlled medicines – an area that has long been
de-prioritised in favour of a focus on repressive, law enforcement-led
approaches to reduce the illicit drug trade. Most drugs included in the
schedules of the UN conventions also have important medical purposes, and
several appear on the WHO “List of Essential Medicines”. However, the availability of opiate
painkillers like morphine for example, has been dramatically low in most
developing countries due to overly strict regulations reflecting over-riding
concerns about diversion and addiction rather than a need to ensure
access to pain relief.

Russia, alongside several Asian and
Middle Eastern countries, has played hardball in the negotiations.

Unfortunately, other areas of progress remain
stilted. Russia, alongside several Asian and Middle Eastern countries, has
played hardball in the negotiations, effectively putting the brakes on the
shifting discourse. The negotiations are driven by consensus, making it
unlikely that contested policies in the field of harm reduction, or reforms
like decriminalisation, despite being widely accepted and propounded by all relevant
UN agencies, will be explicitly recommended in the UNGASS outcome document.
Likewise, a clear condemnation of the death penalty for drug offences is
probably going to be blocked by a small group of countries. The prophecy that
allowing the CND to take full control over the UNGASS preparations would
undermine progress towards a more system-wide coherent UN drugs policy seems to
be being borne out. Negotiations about
the UNGASS outcomes have taken place mostly in ‘informal’ sessions in
Vienna, dominated by a minority of member states and from which civil society
is excluded from participating or even observing.

For the General Assembly, an obvious priority
for this UNGASS would be how to align UN drug policy with the recently adopted
new global framework of the Sustainable Development Goals (SDGs), but
negotiations in Vienna carry on as if they are negotiating another CND resolution.
Submissions from
other member states, UN agencies and civil society calling for a
recognition of the failure of repressive responses and highlighting the need to
connect the drugs issue with the agreed UN priorities for the future of the
planet have so far not been reflected in successive drafts of the UNGASS
outcome document. The general tone of
these drafts is very much ‘business-as-usual’.

At present, few countries are willing to
openly acknowledge the existence of structural deficiencies with regard to UN
system-wide coherence, the institutional architecture and the legal treaty
framework. No easy solutions are available for reforming the foundations of the
global control system and consensus will be hard to find, but a continued
denial of the reality of the on-going policy trends and the resulting tensions
with the treaty system will not make them disappear. In fact, to do so will
hinder the much-needed evolution of the UN drug control system and its ability to
adapt to the realities of today. Towards this end, it could be helpful if
the UNGASS outcome leads to the convening of an advisory group or an expert
panel to think through different scenarios for the future evolution of the
system, especially in the lead up to the next important moment in 2019 when
member states will have to agree a new global action plan on drugs, hopefully
more in line with the broader set of UN priority goals for the next decade.

Although it is clear that the so-called ‘Vienna
consensus’ has been breaking apart for some time and there is a growing desire
to find viable policy alternatives to repression and punishment, there are
still powerful countries and entrenched bureaucracies that are staunchly
opposed to any kind of reform. The divisions
between member states but also between UN agencies on this issue have become
too visible to ignore and the UNGASS is a perfect opportunity for an honest
assessment of the performance of the international drug control system and the
options for a change of course.

Given the high human cost of the
damaging approaches pursued to date, many people around the world have high
hopes that governments will not squander this opportunity. And yet, to what
extent the UNGASS can really live up to these hopes remains to be seen. The
latest dynamics in Vienna do not bode well, as bureaucratic machinations,
political complacency and exclusion seem to rule the process. The lack of
vision, inclusivity and commitment to finding new solutions to many of the
challenges that remain must be strongly condemned, especially given the urgency
expressed by those countries that called for this moment in the first place.

This article is published as part of an editorial partnership between openDemocracy and CELS, an Argentine human rights organisation with a broad agenda that includes advocating for drug policies respectful of human rights. The partnership coincides with the United Nations General Assembly Special Session (UNGASS) on drugs.

About the authors

Ann Fordham is the Executive Director of
the International Drug Policy Consortium (IDPC). Follow her on Twitter: @AnnFordham

Martin Jelsma is Programme Director of the Drugs
and Democracy programme at the Transnational Institute (TNI). Follow him on
Twitter: @MartinJelsmaTNI

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